The National Labor Relations Act and Non-Union Employers: Policy and Practice Issues in a Changing Environment

By Calvasina, Gerald E.; Calvasina, Eugene J. et al. | Journal of Legal, Ethical and Regulatory Issues, January 2007 | Go to article overview

The National Labor Relations Act and Non-Union Employers: Policy and Practice Issues in a Changing Environment


Calvasina, Gerald E., Calvasina, Eugene J., Calvasina, Richard V., Journal of Legal, Ethical and Regulatory Issues


ABSTRACT

For most non-union employers, the National Labor Relations Act (NLRA) is probably not the federal statute that has drawn a great deal of attention in recent years. Given the steady decline in union membership, density, and the number of representation elections conducted over the last forty years, the lack of attention is understandable. Yet in spite of the steady decline in membership and organizing activity, the basic rights of workers to form and join unions guaranteed under the NLRA continue to be advanced by financially and politically powerful entities within the American economy. The purpose of this paper is to analyze recent US Court and NLRB decisions, examine recent union organizing initiatives, and to assess their impact on management policy and practice.

INTRODUCTION

Employers in the United States today have numerous federal and state laws and administrative agencies that impact their human resource management policies and practices. At the federal level Title VII of the 1964 Civil Rights Act as amended, enforced through the Equal Employment Opportunity Commission (EEOC), draws most of the attention of employers because of its prohibition of discrimination in virtually all human resource decision-making situations. Depending on the state where an employers' business is located, the presence of state law and state Fair Employment Practice Agencies (FEPA) can further complicate compliance with anti-discrimination regulations. Wage and Hour regulations under the Fair Labor Standards Act, also enforced through both state and federal departments of labor can also occupy a considerable amount of most employers' attention. For most non-union employers then, the National Labor Relations Act and the National Labor Relations Board (NLRB), are probably not the federal law and agency that draws a great deal of attention.

The NLRA applies to all "enterprises whose operations affect commerce" (NLRB, 1997). The NLRB's requirements for exercising its power or jurisdiction are called jurisdictional standards. The standards are based on the yearly amount of business done by the enterprise, or on the yearly amount of its sales or of its purchases. They are stated in terms of total dollar volume of business and are different for different kinds of enterprises. For example, a retail enterprise with at least $500,000 total annual volume of business would be covered by the Act. A non-retail business with direct sales of goods to consumers in other States, or indirect sales through others (called outflow), of at least $50,000 a year; or direct purchases of goods from suppliers in other States, or indirect purchases through others (called inflow), of at least $50,000 a year would also be covered (NLRB, 1997).

The primary responsibility of the NLRB is the prevention and remedying of unfair labor practices under the National Labor Relations Act (NLRA) and the guaranteeing of the rights of employees to organize and bargain collectively with their employers. When you're a non-union employer without an open ongoing union organizing campaign underway, complacency with respect to the NLRA and the NLRB is understandable. Given the renewed interest and efforts on the part of organized labor to organize non-union employers and, NLRB and Federal Court decisions in the last decade, the mindset and perception as to the NLRA and the NLRB's impact on non-union employers should be changing. Organized labor has achieved some very large measures of success in organizing in recent years, and decisions by the NLRB, some already supported by court decisions, have impacted a number of issues important to all employers. The purpose of this paper is to examine recent US Court and NLRB decisions, recent union organizing initiatives, and to assess their impact on management policy and practice.

LEGAL BACKGROUND AND RECENT DECISIONS

Section 7 of the National Labor Relations Act (NLRA) provides employees with the right to . …

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